[Deathpenalty] [SPAM] death penalty news----CONN., N.C., FLA., USA, NEB., CALIF.

[Rick Halperin]

April 23



CONNECTICUT:

Families of Murder Victims Key to Victory in Repeal of Death Penalty in 
Connecticut


One of the false premises often cited to support the death penalty is that it 
delivers "justice" to the victims of violent crimes and their families. Yet, 
many families of murder victims disagree with this argument. In Connecticut, 
nearly 200 relatives of victims of violent crime told lawmakers that the death 
penalty would only increase their anguish. Their voices were critical to 
persuading the State Legislature to repeal capital punishment.

These spouses, siblings, parents and others told legislators that exacting 
revenge would not help them heal, nor end their pain. They were adamant that 
countering one murder with a state-sanctioned killing would only prolong and 
exacerbate their suffering. The cumbersome legal process that leads to an 
actual execution, while necessary, also keeps the spotlight on the murder and 
especially the murderer, often for decades -- an agonizing process for 
families. Ultimately, they said, justice would be served by imprisoning the 
murderers of their loved ones.

Lawmakers considered many facts about the death penalty, including the 
exonerations of death row inmates due to the evolution of DNA evidence. The 
debate took place against the triple homicide in 2007 of the Petit family, in 
which two men were convicted last year.

The family members offered a measured response to those who said Connecticut 
must keep the death penalty to punish the men convicted for this terrible 
crime.

I have been a human rights advocate working to end the death penalty for more 
than a decade. During that time, some of these family members have become my 
dearest friends. They are mothers whose children were killed in street 
violence, young people who lost parents to domestic violence, and siblings 
whose brothers or sisters died violently. They helped me to understand how the 
death penalty actually hurts victims' families.

The pivotal moment came in 2004 when Michael Ross, the serial killer, gave up 
his appeals and the state scheduled his execution.

With others who oppose the death penalty on grounds that it is the ultimate 
human rights violation, I began organizing protests, vigils and marches against 
his execution.

2 women who lost loved ones to murder, Elizabeth Brancato and Gail Canzano, 
joined our cause.

As a psychologist, Gail had testified about the psychological trauma families 
experience during the long death penalty process, in which appeals can go on 
for decades.

Elizabeth was one of the leaders of a 27-mile march we organized from Hartford 
to the state prison in Somers, where the execution would take place.

The second day of the march coincided with the anniversary of her mother's 
murder. The dignity and grace she demonstrated -- and her resolve to fight 
capital punishment instead of disgracing her mother's name by supporting 
another killing -- profoundly moved us and inspired other relatives of murder 
victims to join our movement to abolish the death penalty.

Immediately following Ross' execution, one after another relatives of murder 
victims, inspired by Elizabeth, started contacting me and others asking how 
they could get involved.

As each told their stories, they encouraged others to step forward and the 
impact mushroomed.

By the start of the 2012 legislative session, 180 state residents whose family 
members had been murdered endorsed a letter sent to every Connecticut lawmaker 
in favor of ending the death penalty.

Ultimately, the families helped us win the votes needed to abolish the death 
penalty in the State Senate and House.

When Gov. Dannel Malloy signs the bill repealing the death penalty -- as he has 
promised to do -- we will celebrate victory with these individuals who, despite 
their unimaginable pain and sorrow, helped to convince people in Connecticut 
that compounding one tragedy with another is not justice.

(source: Huffington Post; Robert Nave is a high school social studies teacher 
in Connecticut and Amnesty International's Northeast regional/Connecticut death 
penalty abolition coordinator)






NORTH CAROLINA:

Racial Bias in Death Penalty Cases: A North Carolina Test


A judge gives life to an extraordinary new law designed to remedy the state's 
long history of prejudice in capital trials.

If we still want to have a sound and sober national conversation about race and 
justice, if we still are eager to use a single case as a totem for what we 
perceive to be wrong or unjust about the criminal justice system, perhaps we 
all would be better served by paying attention to what's happening in North 
Carolina to a man named Marcus Robinson than we are by paying attention to 
what's happening in Florida to a man named George Zimmerman.

State "Stand Your Ground" self-defense laws, like the one about to save 
Zimmerman, may be today's fashionable example of a way in which the law is 
manipulated to achieve a particular result (by design, these ALEC-infused 
"affirmative defenses" allow more people to kill more people without being 
punished for it). But compared with the country's long history of racial bias 
in jury selection, compared with all the death penalty cases that have been 
rigged in this fashion over the years, the new "justifiable homicide" laws have 
only begun to do their work.

On Friday morning, at his bail hearing, Zimmerman solemnly apologized, live on 
national television, to the family of Trayvon Martin, the unarmed young man he 
shot to death on February 26 in Sanford, Florida. Around the same time, 700 or 
so miles up the road, a state court judge in Fayetteville, North Carolina, was 
publishing an apology of sorts of his own: a 168-page order, an instant 
must-read for anyone who cares about crime and punishment, that vacated 
Robinson's death sentence and re-sentenced the convicted murder to life in 
prison.

Actually, Cumberland County Senior Resident Presiding Judge Gregory A. Weeks' 
order was more of an indictment than an apology. In meticulous detail, he 
explained why Robinson, who is black, deserved relief under the state's Racial 
Justice Act, a laudable legislative effort designed to vindicate the rights of 
capital defendants whose trials are marked by racial bias. Weeks was convinced 
by the evidence that prosecutors had used peremptory challenges at Robinson's 
1994 murder trial to systematically remove blacks from his jury pool.

An apology. An indictment. And also a warning. Judge Weeks wrote: "In the first 
case to advance to an evidentiary hearing under the RJA, Robinson introduced a 
wealth of evidence showing the persistent, pervasive, and distorting role of 
race in jury selection throughout North Carolina. The evidence, largely 
unrebutted by the State, requires relief in his case and should serve as a 
clear signal of the need for reform in capital jury selection proceedings in 
the future."

THE HISTORY

A peremptory challenge occurs before a criminal trial when the prosecutor or 
defense attorney unilaterally dismisses a potential juror from the pool without 
having to provide any factual or legal justification for doing so. Rule 24 of 
the Federal Rules of Criminal Procedure, for example, states that each side in 
federal capital case gets 20 peremptory challenges. It's a lower number for 
non-capital cases. In North Carolina today, as well as when Robinson was tried, 
each side gets 14 peremptory challenges in a capital case.

For nearly a century of American history, there was no significant racial 
component to peremptory challenges because there were virtually no black or 
other minority jurors. Scholars believe that blacks began serving on juries 
only in 1860. By the end of the bloodiest decade in American history, a 
Reconstructionist Congress in 1869 gave blacks the right -- in the District of 
Columbia anyway -- to hold public office and serve on juries. (For an excellent 
look at this issue read this Yale Law Journal article by James Forman, Jr.)

What some prosecutors decided to do, almost as soon as blacks began to serve on 
juries, was to disqualify them from specific cases by using peremptory 
challenges. Black jurors were peremptorily precluded from sitting in judgment 
on black defendants and black jurors were peremptorily precluded from sitting 
in judgment on white defendants, especially those charged with killing or 
injuring black victims. More or less, and in some venues more often than 
others, it was this way in America for decade upon decade.

Let's now jump ahead to Batson v. Kentucky, a 1986 United States Supreme Court 
decision which made it easier -- but still not easy -- for black defendants to 
successfully challenge their convictions based upon race-based peremptory 
challenges. Convicted defendants still had to produce evidence of bad intent on 
the part of prosecutors in a case-specific context. Justice Thurgood Marshall, 
in a concurrence, wrote that "the inherent potential of peremptory challenges 
to distort the jury process by permitting the exclusion of jurors on racial 
grounds should ideally lead the court to ban them entirely..." But the Batson 
Court ruled:

The defendant first must show that he is a member of a cognizable racial group, 
and that the prosecutor has exercised peremptory challenges to remove from the 
venire members of the defendant's race. The defendant may also rely on the fact 
that peremptory challenges constitute a jury selection practice that permits 
those to discriminate who are of a mind to discriminate. Finally, the defendant 
must show that such facts and any other relevant circumstances raise an 
inference that the prosecutor used peremptory challenges to exclude the 
veniremen from the petit jury on account of their race.

Once the defendant makes a prima facie showing, the burden shifts to the State 
to come forward with a neutral explanation for challenging black jurors. The 
prosecutor may not rebut a prima facie showing by stating that he challenged 
the jurors on the assumption that they would be partial to the defendant 
because of their shared race or by affirming his good faith in individual 
selections.

Nearly 20 years later, the Supreme Court upheld the essence of Batson in a 
contentious case out of Texas styled Miller-El v. Dretke. You can't understand 
the significance of Judge Weeks' ruling without reading Miller-El. The 6-3 
majority opinion is a testament to the scurrilousness of prosecutors and to the 
lumbering judicial response to systemic racial bias. Even in 2005, Miller-El 
reminds us, the United States Supreme Court was publicly arguing with a lower 
federal court about whether a rigged capital trial warranted meaningful 
judicial relief.

NORTH CAROLINA AND THE LAW

In North Carolina, meanwhile, in 2009, state lawmakers passed the Racial 
Justice Act. The text of the law allows convicted murderers to challenge their 
death sentences -- but not their underlying convictions -- by proving patterns 
of racial "discrimination by county, district, division or state." For example, 
if race was a "significant factor in decisions to exercise peremptory 
challenges during jury selection," a convicted defendant has a right under the 
new law to come to court to present his case. Moreover, he has a right to 
present "statistical" evidence of such bias.

Because it eliminated the need for defendants to prove "discriminatory intent" 
in their case, the state law gave capital defendants more constitutional 
protections than the Supreme Court had identified as constitutional baselines 
in Batson and Miller-El. So did prosecutors champion this notable development 
in the ugly history of North Carolina's racial history? Did they earnestly 
acknowledge the need to fix discriminatory results? Nope. They were instead 
furious about the statute's acceptance of broader statistical evidence to show 
discrimination.

Here's a memorable passage from the (Durham) Independent Weekly from June 2009:

Speaking on behalf of the {NC] Conference [of District Attorneys], Wake County 
District Attorney Colon Willoughby appeared before the Ways and Means Committee 
and compared disproportionate sentencing based on race to similar sentencing 
based on "blood type" or "astrological signs."

Willoughby called the use of statistics, which the bill would allow, a 
"disingenuous and scientifically unsound method to insert some sort of causal 
relationship without proof."

A 2001 study conducted by two University of North Carolina professors, who 
analyzed cases over four years in the 1990s, found the odds of receiving a 
death sentence in North Carolina increased 3.5 times in cases in which the 
victim was white. In addition, the study found, black defendants were twice as 
likely to receive death sentences in instances of identical crimes.

Nearly 1/2 of the defendants North Carolina has sentenced to death since 1977 
are black, although the state has had an African-American population of roughly 
22 percent over the past three decades. This figure, collected by the N.C. 
Department of Correction, does not include defendants sentenced to death and 
later exonerated for wrongful convictions--the last 3 of whom were all 
African-American.

Seth Kotch and Robert P. Mosteller, in a smart 2010 law review piece about the 
Racial Justice Act and North Carolina's "long struggle" with race and the death 
penalty, offer a little more context:

>From colonial times into the 1960s, the overwhelming majority of those executed 
were African American, and although most victims and perpetrators of crime are 
of the same race, the overwhelming majority of victims in cases where 
executions took place were white. Hundreds of African Americans have been 
executed for a variety of crimes against white victims, including scores of 
African American men executed for rape. However, just four whites have been 
executed for crimes against African American victims, all murders.

Not only does data indicate disproportionate racial impact, but events show 
that race frequently influenced capital prosecutions. In many cases in the 1st 
half of the 20th century, juries sentenced African Americans to death in the 
shadow of lynch mobs. Newspaper reports of executions of African Americans 
included overtly racist images.

In some instances, fairness and mercy eased the pernicious effects of 
prejudice. However, history shows that whether dooming African Americans or 
saving them from death, racial prejudice played a powerful role in the death 
penalty in North Carolina, enduring across the state's history despite enormous 
social and legal change.

This is why Judge Weeks' decision is one of the most notable of the year.

CAROLINA V. ROBINSON

MORE ON THE DEATH PENALTY

The Looming Death of the Death Penalty Why Lawyers and Judges Should Watch 
Executions Why America's Death Penalty Just Got Us Sanctioned by Europe The 
Appeal of Death Row Even the procedural story of this case helps illustrate the 
reluctance of prosecutors to do right by the system. In August 2010, Robinson 
timely filed his request for the evidentiary hearing contemplated by the law. 
Judge Weeks set an evidentiary hearing for September 2011, 11 months after 
Robinson's initial filing. The state asked for a continuance -- and the judge 
granted it to November 2011. Then the state sought to have the judge recused- 
the attempt failed when another judge denied the request. Then the state asked 
again for a continuance -- and was given one. It was only when the state asked 
a third time that Judge Weeks said no.

Prosecutors first argued that the state law required a defendant to show that 
prosecutors had intentionally discriminated against a defendant -- a standard 
the United States Supreme Court had employed in 1987 in a case styled McCleskey 
v. Kemp. In that case, the Court ruled 5-4 that a convicted black defendant, 
despite offering up statistics of racial disparity in Georgia, had not 
established that the state's capital sentencing scheme violated equal 
protection guarantees in the Constitution.

Judge Weeks rejected this argument. State lawmakers were aware of McCleskey, he 
wrote, and if they wanted to require defendants to prove intentional 
discrimination they would have and could have written that into the Justice 
Act. Then he rejected the argument that defendants under the Justice Act needed 
to prove that they had been prejudiced by the racial bias which had been a part 
of the peremptory challenges. "Both defendants and society are injured by the 
use of peremptory strikes in a racially-biased manner," he wrote.

Then, for a fulsome 65 pages, Judge Weeks turned to the statistical bases for 
his conclusion. What he found from the evidence (which alone, remember, would 
be insufficient under Batson) was a remarkable consistency in the percentage 
difference between black jurors and white jurors peremptorily struck from jury 
pools. The ratio was almost always 2:1 -- twice as many blacks were kicked off 
than whites. This was no accident, Judge Weeks concluded, citing another 50 
pages or so of "non-statistical" evidence to hammer home his point.

The judge ruled that Robinson had met his burden of establishing race as a 
"significant factor" in the jury selection of his case. Judge Weeks then also 
found that Robinson's trial had been marked by intentional discrimination 
anyway, beyond the more general statistical support. The judge noted that state 
prosecutors as recently as last year had been instructed on jury selection-- 
not to be more sensitive to inherent racial biases but to hide or justify them. 
That's also what the justices had found was happening with prosecutors in Texas 
in Miller-El.

POSTSCRIPT

It is still too early to safely predict whether Judge Weeks' ruling will 
withstand its inevitable appeal. Unless the state appellate courts want to read 
into the statute language that is not there, or want to proclaim that the trial 
judge evaluated the evidence incorrectly, it's hard to see how the Act wouldn't 
apply to Robinson. In the meantime, there has been no legislative stampede in 
other death penalty jurisdictions to so directly and honestly confront obvious 
patterns of racial bias in capital cases.

North Carolina is out in front on this, in a very significant way, but it will 
likely be many years before we learn whether its approach to racial justice was 
an early sign of things to come or just another failed effort at bringing equal 
protection and equal justice to black defendants, victims and potential jurors. 
That we still have to wait that long -- 150 years after the Civil War -- is 
itself a testament to how far so many prosecutors and judges have strayed from 
their mission of justice.

(source: The Atlantic)






FLORIDA:

Advocates keep swinging for death row inmate----Man accused of double murder on 
Christmas Eve 1975


In 35 years on Florida's death row, Tommy Zeigler's cries of innocence have 
swayed a former newspaper editor, the daughter of a police chief who helped put 
him behind bars and an assortment of others who have come to believe that he 
didn't commit one of the state's most notorious mass slayings of the 1970s.

A reporter wrote a book about him called "Fatal Flaw," and national TV programs 
-- including "Unsolved Mysteries" -- turned a skeptical eye on the evidence. 
His many supporters now range from a former sheriff's deputy who helped 
investigate the slayings to celebrity civil rights activist Bianca Jagger. A 
private investigator believes in the 66-year-old Zeigler's innocence so 
strongly that she picked up his case last year and has worked on it almost full 
time for free.

On April 11, Zeigler's longtime lawyers tried again to get the appeals courts 
to re-examine his case. A new motion claims evidence turned up recently by the 
investigator pokes more holes in the case against Zeigler and creates enough 
new reasonable doubt to tip the scales in favor of a new trial. The document 
claims prosecutors lied and withheld information from Zeigler's lawyers -- 
including the existence of a key witness.

Prosecutors then and now have portrayed Zeigler as a calculating monster who 
slaughtered his wife, her parents and another man in the family furniture store 
on Christmas Eve 1975 to collect insurance money.

Of Florida's 399 condemned prisoners, only 11 have been on death row longer 
than Zeigler. Having already survived 2 death warrants, he can't help but 
wonder how soon his time will come now that the state's death chamber is 
humming again. 4 men have been executed in the past 7 months under Gov. Rick 
Scott - the latest on April 12. 2 of them had been there 3 decades or more. 
Zeigler knew them well; they were as close to friends as anyone gets in 
"P-Dorm" at Union Correctional Institution.

"When I left on July 16, 1976, and came to death row, my lawyers told me not to 
bother to unpack, they'd have me out in six months," Zeigler said in an 
interview at the prison recently. "It's been a long 6 months."

Unlikely killer

>From the beginning, it wasn't just his defense team that doubted William Thomas 
Zeigler Jr. was capable of committing the awful crimes.

At 30 he had more than a million dollars in assets thanks to his family's 
furniture store, and was a well-liked and prominent figure in the small town of 
Winter Garden, just west of Orlando. He and his wife Eunice lived in a nice 
house not far from the store, doted on their many Persian cats and seemed to 
get along just fine. He'd never been arrested.

That's why it is still so hard for many to believe that he was responsible for 
the bloody, confusing scene at the W.T. Zeigler Furniture store on Dec. 24, 
1975. Prosecutors say it happened like this: Zeigler lured Eunice to the store 
to kill her, and her parents, Perry and Virginia Edwards, got in the way. A 
fruit picker Zeigler knew named Charlie Mays was killed, too. Then Zeigler shot 
himself in the stomach to make it appear as if they'd been the victims of a 
robbery. He staged it all so he could collect on a $500,000 life insurance 
policy he took out on his wife just months before. All the victims were shot.

Neither side disputes that Zeigler, at 9:20 that night, called the house of a 
municipal judge who was hosting a Christmas party with many prominent people in 
attendance and reported that he'd been shot at the store.

The story Zeigler told that night is the same story he tells today. He says he 
went to the store to do some last minute Christmas deliveries. Unbeknownst to 
him, his wife and in-laws, who had come to look at a recliner that was to be 
her father's Christmas present, were already dead in various places in the 
store when he arrived. After finding the lights shut off at the breaker box, he 
was hit over the head and beaten by two men. He lost his glasses but managed to 
find and fire one of the guns he kept in the store. He believes Mays - who had 
cash from the store stuffed in his pocket - was one of the attackers and was 
killed in the gunfight. Zeigler says that when he came to after being knocked 
out, he was the only one left alive in the store. Whoever else attacked him had 
fled.

Zeigler had a reputation in town for sticking up for minorities and migrants 
who worked picking fruit in the area. He and others believe he was attacked and 
then framed in a law-enforcement conspiracy because he was about to uncover 
corruption involving high-ranking local officials, including a loansharking 
operation that preyed on the migrant workers.

Zeigler was found guilty on July 2, 1976, amid allegations of juror misconduct. 
One of the jurors, now dead, said in media interviews after the trial that she 
believed Zeigler was innocent and that she was harassed and coerced into voting 
guilty by other jurors who wanted to finish up in time for the nation's 
Bicentennial celebration two days later. The jury then voted to recommend a 
life sentence for Zeigler, but the judge - in an exceedingly rare move in 
Florida - overruled the panel and sentenced him to death.

Zeigler's appeals were enough to get stays of execution twice after governors 
signed death warrants. He once came to within a half day of execution. A 2nd 
sentencing hearing ordered by an appeals court two decades ago resulted in 
another death sentence. More recent appeals have fallen on deaf judicial ears.

Even so, Zeigler has picked up a growing wave of support through the years. One 
of his early advocates was David Burgin, who was hired as the Orlando 
Sentinel's editor in 1981. Burgin said the more he looked into the case and 
studied court transcripts, the more he believed his newspaper had treated 
Zeigler unfairly. He continued to advocate for Zeigler as he moved on to other 
newspaper jobs through the years, but now is retired and in ill health.

In 2003 he wrote a letter to then-Gov. Jeb Bush calling attention to Zeigler's 
case and publicly apologizing for the newspaper's failure to question 
prosecutors' version of events and being biased against Zeigler from the 
beginning. The newspaper, Burgin wrote, "spent no time trying to cover the case 
with a hard eye on the defendant's story." He said he's convinced the case 
against Zeigler was contrived and that he was framed.

"It's a collection of lies and false assumptions," the 73-year-old Burgin said 
in a telephone interview recently. "His whole life is gone, and he's still 
getting screwed. It's just so damn unfair that it's pathetic."

Carty said the witness didn't acknowledge anything beyond that he was in the 
same county at the time. An investigator had testified at trial that the 
witness' name was a typographical error in a report. It's not clear what the 
witness may have said had he ever testified, but they say proof that he exists 
supports their contention of perjury.

The daughter of the former police chief of the adjacent town of Oakland now 
says she believes Zeigler is innocent and may have been framed by her father 
and others. Robert Thompson was among the first officers on the scene the night 
of the slayings and drove Zeigler to the hospital.

Christine Cooper said her father died in 1999 "taking a lot of secrets with 
him."

Leigh McEachern, a former Orange County chief deputy, said that there was 
evidence the sheriff's office didn't process at the time because investigators 
assumed Zeigler was guilty. He said that enough new evidence has surfaced since 
then that he now believes Zeigler to be innocent.

Zeigler is heartened by the new attempts to prove his innocence, but at the 
same time he's gotten used to new supporters enthusiastically joining the 
effort only to go on their way when they find they can't get anything done for 
him.

"Every year," he said in the interview last month, "another piece of this 
puzzle comes together."

Zeigler's attorneys are now asking a judge to grant him a new trial based on a 
number of claims, including that prosecutors used false and misleading 
testimony and concealed evidence, and that the new evidence would likely 
produce his acquittal.

"Newly discovered evidence establishes that the State concealed material 
information from the defense in this case - a case based on circumstantial 
evidence and involved an initially deadlocked jury," said the motion, filed in 
state circuit court last week.

State attorney's office spokeswoman Danielle Tavernier declined to comment on 
the case except to say that prosecutors will fight the new motion in court.

(source: Lynn-Marie Carty, the St. Petersburg-based investigator, heard about 
Zeigler's case last year and was moved to get involved. She said she found a 
witness whose existence she claims was acknowledged then denied by prosecutors 
at the time, as well as an attempted robbery at a gas station the same night 
across the street from the furniture store. Zeigler's lawyers claim prosecutors 
knew this information but withheld it at trial; Associated Press)



USA:

Death-penalty ruling still resonates 10 years later


It has been nearly 10 years since the U.S. Supreme Court ruled in an Arizona 
case, prompting then-Gov. Mike Johanns to call Nebraska lawmakers into a 
special session to change how the state sentences people in capital cases.

But the verdict is still out on the overall effect of the case known as Ring v. 
Arizona.

"I think Ring has had a significant effect on the death penalty, but the impact 
has not been as broad as some predicted," said Richard Dieter, executive 
director of the Death Penalty Information Center.

The June 2002 ruling said that juries, not judges, must have the final say in 
who gets the death penalty. In Nebraska, only judges had handed down death 
sentences since state lawmakers decided in the 1970s there was the potential of 
bias by juries.

The ruling also forced changes in death penalty laws in Arizona, Montana, Idaho 
and Colorado, because those states also left it to judges to determine if a 
killer should be executed.

And it wasn't long after that lawyers began questioning whether Ring would 
apply retroactively to death row inmates sentenced by judges.

Lower courts were divided. The Nebraska Supreme Court was among those to rule 
that the U.S. Supreme Court ruling was not retroactive. U.S. District Court 
Judge Joseph Bataillon of Omaha ruled that is was.

In 2004, Nebraska was joined by 15 other states in a motion with the U.S. 
Supreme Court in a case that stood to affect hundreds of death-row inmates 
nationwide -- including 5 in Nebraska. Nebraska Solicitor General J. Kirk Brown 
was joined in the brief by the attorneys general of Alabama, Colorado, 
Delaware, Florida, Illinois, Indiana, Montana, Nevada, Oklahoma, Ohio, South 
Carolina, South Dakota, Texas, Utah and Virginia.

"The implications of retroactivity are staggering," Nebraska Attorney General 
Jon Bruning said at the time. "If the Supreme Court rules in favor of 
retroactivity, we could be forced to retry the penalty phase of the five 
death-penalty cases decided by the Nebraska Supreme Court before the Ring 
decision was handed down."

The ruling could have affected 5 of Nebraska's seven death-row inmates at the 
time: Carey Dean Moore, Charles Jess Palmer, Michael Ryan, John Lotter and 
David Dunster.

The high court eventually ruled in Schriro v. Summerlin that Ring would not be 
retroactive, overturning a ruling by the 9th U.S. Circuit Court of Appeals.

In Summerlin, Justice Antonin Scalia wrote that "we give retroactive effect to 
only a small set of 'watershed rules of criminal procedure implementing the 
fundamental fairness and accuracy of the criminal proceeding.' That a new 
procedural rule is 'fundamental' in some abstract sense is not enough; the rule 
must be one 'without which the likelihood of an accurate conviction is 
seriously diminished.'"

Said Dieter of the Death Penalty Information Center: "Many death row inmates 
received no relief."

Overall, he said, juries are not automatically more lenient than judges.

"And at least in Arizona, it has taken some time for the defense bar to adapt 
to the kind of sentencing presentation that works best with juries," he said. 
"It is a special skill. In the long run, the requirement of a unanimous jury 
for a death sentence -- which is what most states employ -- gives the defendant 
better odds of avoiding the death penalty. Individual jurors may be reluctant 
to impose death, knowing how many mistakes have been made in convictions in 
recent years."

Dieter said the increased reliance on jurors in capital cases poses another 
problem for the death penalty.

Jurors in most death-penalty states have to be "death-qualified" -- meaning 
they are not categorically opposed to the imposition of capital punishment or 
do not believe the death penalty must be imposed in all instances of capital 
murder.

"Many of those with doubts about the death penalty are rejected from serving," 
Dieter said. "That group tends to have more minorities, more women and more 
members of certain religious beliefs. This raises concern about equal 
protection, civil rights of jurors and religious liberty. If challenging the 
death penalty is associated with protecting innocent people's rights, it is 
likely to attract more sympathy than protecting the rights of convicted 
murderers."

In Nebraska, jurors decide only whether aggravating factors exist. That could 
include things such as whether the killing was especially heinous or whether it 
was committed for money. Aggravating factors are supposed to be weighed against 
mitigating factors, which could include a defendant's background.

A 3-judge panel then decides if the death penalty is warranted if aggravating 
factors are found by the jury.

Jerry Soucie, a lawyer with the Nebraska Commission of Public Advocacy, said 
jurors in Nebraska are not death-qualified. Instead, the courts use special 
jury instructions, such as: "Members of the jury, you have nothing to do with 
the sentence imposed, whether that be life or death. You are simply to find 
whether certain aggravating circumstances exist. Do you have any personal or 
religious beliefs that would prevent you from discharging that duty as a 
juror?"

Lincoln attorney and long-time death penalty opponent Alan Peterson said the 
Ring ruling shows the absurdity of the death penalty.

"Long before Ring, several death row prisoners in Nebraska had already appealed 
on this exact same basis -- they had argued that they were unconstitutionally 
deprived of that jury consideration that could lead to a death penalty and the 
Nebraska courts rejected this constitutional argument," he said.

One of those inmates was Carey Dean Moore, whose appeal raising the issue came 
in 1982.

"Moore made the claim ... on his very first appeal," Peterson said. "The 
factual situation illustrates the absurdity and inconsistency of application in 
death penalty law development over the decades.

"This, in my opinion, illustrates how overly complicated, unfair and broken the 
death penalty system is," he said. "No wonder state after state is giving up on 
it, due to its cost, its aggravating slowness and its arbitrariness."

Meanwhile, Ring still is resonating in the courts.

Last year in Florida, for example, U.S. District Judge Jose Martinez declared 
Florida's death penalty violated Ring because jurors are not required to make 
findings beyond a reasonable doubt on the aggravating factors that can result 
in a sentence of death.

"Even though it has been 10 years, the legal issues surrounding Ring have not 
been settled," Dieter said.

(source: Journal Star)

*******************************

Redefining Roper and the Juvenile Death Penalty


JURIST Assistant Editor Katherine Bacher, University of Pittsburgh School of 
Law Class of 2014, argues that the US Supreme Court should consider reinstating 
capital punishment for defendants who committed serious crimes while under the 
age of 18... (Her opinions are not intended to represent those of JURIST)

The death penalty continues to be one of the most controversial aspects of the 
US penal system. It has received a great deal of attention in the last few 
decades, as the Supreme Court has placed more and more restrictions on capital 
punishment and greatly limited the instances in which it is permissible. Most 
notably, in Roper v. Simmons, in 2005, the Court abolished the juvenile death 
penalty, holding that it was unconstitutional to impose the death penalty for 
crimes committed when under the age of 18. While there have been further 
restrictions made with regard to sentences available for juvenile defendants, 
Roper has most drastically limited the penological powers of the state. The 
Supreme Court should reconsider the context of its previous jurisprudence, and 
consider moving toward a standard that preserves states' rights and takes into 
consideration all the factors of a crime in sentencing, rather than placing a 
categorical ban on the availability of the juvenile death penalty.

The challenge to the appropriateness of the juvenile death penalty has surfaced 
in light of concern over the increasingly harsh penalties being given to 
juveniles for what seem like increasingly serious and adult crimes. The 
argument in opposition to capital punishment for juveniles holds that it 
constitutes cruel and unusual punishment under the Eighth Amendment of the US 
Constitution, which states that, "excessive bail shall not be required, nor 
excessive fines imposed, nor cruel and unusual punishments inflicts." However, 
in context, the issues surrounding juvenile capital punishment appears more 
politically than socially motivated. It has previously been decided by the 
Supreme Court in Trop v. Dulles that any examination of this amendment "must 
draw its meaning from the evolving standards of decency that mark the progress 
of a maturing society." This interpretation has been used by the Court in cases 
that followed Trop to determine what punishments are appropriate for different 
classes of people. In determining the "evolving standards of decency," a major 
point of contention has been the influence that foreign laws, norms and 
precedents have had on the interpretation of US law and the penological goals 
of the country. Prior to Roper, the US was one of only a few countries to have 
maintained the juvenile death penalty. And it is well known that ever 
increasing pressure from international organizations played a large role in the 
Court's decision to ban the juvenile death penalty.

In Roper, under the "evolving standards of decency" test, the Court held that 
it was cruel and unusual to execute a juvenile. The decision focused heavily on 
the mental capacity of adolescents and numerous other mitigating factors 
surrounding the maturity and responsibility of juveniles, and the corresponding 
level of punishment that is acceptable. Among the mitigating factors considered 
were the age of the juveniles at the time of the offense, the nature of the 
crime committed, the brutality of the crime and the mental state of the 
juvenile at the time of the crime. The Court's decision held that juveniles 
cannot be sentenced to death, as, in light of these mitigating factors, the 
Eighth Amendment would bar such a practice.

It was decided in the earlier case of Harmelin v. Michigan that when the death 
penalty is being considered for adults, it is necessary to consider the 
mitigating factors. Depending on the extent to which they exist, a defendant 
may receive a lesser, but still severe, sentence, such as life in prison 
without the possibility of parole. The reasoning behind this is that it would 
be inhumane to impose a death sentence while ignoring potentially mitigating 
factors. In the same vein, with respect to the juvenile death penalty, instead 
of categorically banning capital punishment, the Court should have reinforced 
its decision in Harmelin regarding mitigating factors. The categorical ban 
removes the states' penological prerogative to punish serious offenders to the 
full extent of their laws. Leaving the death penalty as a possibility would 
serve many of the same penological objectives that society promotes via other 
sentences, such as deterrence and retribution.

In 2010, the Court moved beyond Roper, holding that juvenile offenders cannot 
be sentenced to life imprisonment without parole for non-homicide offenses. 
Furthermore, Graham v. Florida is particularly of note because of the test that 
the Court employed in deciding it. A 2-part test was used to examine how the 
Eighth Amendment applies to juvenile sentences. The 1st part of the test deals 
with a proportionality challenge, which requires that the nature of the crime 
and the age and mental capacity of the defendant be taken into consideration 
for individualized sentencing. The 2nd part of the test deals with a 
categorical challenge and analyzes the sentence in relation to an entire class 
of individuals.

The elements of the proportionality challenge include: the age of the defendant 
at the time of the crime, the nature of the crime committed, the severity of 
the sentence in question and the penological goal of the government in imposing 
the sentence. In the case of the juvenile death penalty, as was established in 
Graham, the age of the defendant, the nature of the crime and other mitigating 
factors could be taken into consideration when determining if capital 
punishment is appropriate, allowing jurisdictions to impose sentences that 
reflect their own standards of decency. Overturning the ban on the juvenile 
death penalty would not force states to reinstitute this penalty, rather each 
jurisdiction could determine what its constituency approves of or feels 
appropriate. However, the decision in Roper disallows states from ever having 
the opportunity to use this form of penalty, even in cases in which the 
democratic population of a jurisdiction approves of it and feels it to be 
necessary.

The reasoning that the Court used in Roper revolved around youth being a 
overwhelmingly mitigating factor, focusing on the signature qualities that make 
up the transient nature of adolescent behavior. The Court decided that due to 
these qualities, juveniles make up a less culpable group even when they commit 
the most heinous of crimes. This seems to unrealistically group all adolescents 
together, rather than considering the characteristics of the actual crime that 
was committed. When juveniles commit adult crimes and when jurisdictions can 
choose to try juveniles as adults, it seems logical that jurisdictions should 
also be able to impose adult sentences on juveniles. The age at which juveniles 
can be tried as adults varies from state to state, and there is much leeway 
given to prosecutors as to whether this should be done. The same deference 
should be given to the states and prosecutors with respect to imposing capital 
punishment on juveniles, as some terrible acts may indeed make the death 
sentence appropriate.

When a 16-year-old commits a heinous murder, it is now commonplace that he may 
receive a life sentence, or even a life sentence without the possibility of 
parol. This adolescent then grows up in a prison environment and is unlikely to 
ever re-enter society as a productive citizen. Some may call the death penalty 
harsh, however, compared to a life with no hope and no chance at ever leaving 
the penal system, it could easily be seen as the opposite. This is not to say 
that the death penalty should be mandatorily imposed on any group, including 
juveniles. However, the Supreme Court should reconsider its determination that 
this sentence is categorically inappropriate for all juveniles, in every 
situation. The decision of whether or not to apply the death penalty for 
juveniles should have been left to the state, as are most other penological 
decisions.

(source: The Jurist; Katherine Bacher graduated from Washington & Jefferson 
College in 2011. She is currently an assistant editor for JURIST's Archives 
service, and the vice-president of the Military Law Society and business 
manager of the Federalist Society at the University of Pittsburgh School of 
Law)






NEBRASKA:

State: Toss Ryan's death row appeal


The state filed a motion Monday asking the Nebraska Supreme Court to dismiss 
the latest appeal from condemned killer Michael Ryan.

Attorney General Jon Bruning said in a statement the court should throw out the 
appeal because there is no doubt about Ryan's guilt.

“These meritless appeals only serve to delay justice,” he said.

Ryan, the former leader of a religious cult, was sentenced to death for the 
1985 torture and murder of 1 of his followers, 25-year-old James Thimm. He also 
was convicted of killing Luke Stice, the 5-year-old son of another cult member.

In February, the state high court put Ryan's latest execution date on hold 
while he pursued a lower court challenge to how Nebraska obtained one of 3 
drugs to be used in his execution.

(source: Omaha World-Herald)






CALIFORNIA:

Calif. death penalty law facing possible termination


California's 33-year-old death penalty law could be on the way out. State 
elections officials are expected to announce later this afternoon that an 
initiative to repeal the 1978 law has qualified for the November statewide 
ballot.

Supporters gathered almost 800,000 signatures to place the measure on the 
ballot. They argue that in the 3 decades since voters 1st enacted capital 
punishment, the costs have skyrocketed while only 13 prisoners have actually 
been executed.

The last execution was in January 2006. Since then, federal courts have blocked 
the state's protocol of lethal injection as unconstitutional.

A 2011 study concluded the capital punishment system has cost California 
taxpayers some $4 billion since its enactment in 1978.

The November ballot measure, if approved by a majority of voters, would make 
all current and future capital crimes punishable by life in prison without 
parole. Inmates would also be required to work in prison to help pay 
restitution to the families of victims. The initiative would also send $30 
million for 3 years to local law enforcement agencies to help solve open murder 
and rape cases.

(source: KXTV News)